Chapter 6: The Civil Justice System

Question 1

What is civil law?

Answer 1

An area of law that establishes the rights and responsibilities of individuals, groups and organisations, and regulates private disputes when these rights are infringed, seeking to remedy loss which has occurred.

Question 2

What is the civil justice system?

Answer 2

A set of methods, processes and institutions used to resolve civil disputes.

Question 3

What is a civil dispute?

Answer 3

A dispute between two parties (made of individuals or groups) in which one makes a legal claim against the other.

Question 4

What are the typical stages that a civil dispute resolved in court may go through?

Answer 4

• attempt to resolve dispute
• claim issued in court
• pre-trial procedures
• hearing or trial
• remedy awarded
• enforcement procedures

Question 5

What is a remedy?

Answer 5

Order made by court to address civil wrong/breach.
Should provide legal solution to plaintiff for defendant’s breach of civil law and restore plaintiff (as much as possible) to their original position before their rights were infringed.

Question 6

True or false?
Each state or territory can establish its own system of resolving civil disputes, make its own civil laws, rules for determining civil disputes and own courts/other dispute resolution bodies (e.g. tribunals).

Answer 6

True

Question 7

Who are the parties in a civil dispute? Define each.

Answer 7

Plaintiff: party commencing civil action and whose rights have been infringed
Defendant: party who is alleged to have infringed the rights of the plaintiff; being sued

Question 8

What does it mean to ‘sue’?

Answer 8

To take civil action against someone, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff)

Question 9

What types of parties can be involved in civil disputes?

Answer 9

• individuals/groups of individuals
• corporation
• government body (i.e. WorkSafe Victoria)

Question 10

How can employers be parties in a civil dispute?

Answer 10

If employee infringes someone’s rights while acting in the course of their employment, employer can be sued as they take vicarious responsibility because they are considered to have a right, ability and duty to control the actions of their employees.

Question 11

Define vicarious liability

Answer 11

The legal responsibility of a third party for the wrongful acts of another.

Question 12

What is liability?

Answer 12

Legal responsibility for one’s acts or omissions.

Question 13

How can children be parties in a civil dispute?

Answer 13

Children (under 18) can sue another person/group through a litigation guardian (usually a parent or guardian).
Children can also be sued. Extent of their legal liability depends on level of maturity and the behaviour expected of a child at that age.

Question 14

What are the main types of dispute resolution bodies?

Answer 14

• complaint bodies
• tribunals
• courts

Question 15

Identify the key concepts of civil law

Answer 15

• the burden of proof
• the standard of proof
• representative proceedings

Question 16

What is the burden of proof?

Answer 16

The obligation of a party to prove a case. Usually rests with the party who initiates the action (the plaintiff in a civil dispute).

Question 17

In what scenario, in a civil case, may the burden of proof be reversed and be upon the defendant?

Answer 17

• the defendant makes a counterclaim against the plaintiff

- defendant raises a particular defence (e.g. contributory negligence)

Question 18

What is a counterclaim?

Answer 18

a separate claim made by the defendant in response to the plaintiff’s claim (heard in same court)

Question 19

What is the standard of proof?

Answer 19

The extent to which a case must be proved in court.

Question 20

Identify and define the standard of proof in civil disputes

Answer 20

• on the balance of probabilities

- requires plaintiff to establish that it is more likely than not that their version of facts is correct

Question 21

What is a representative proceeding?

Answer 21

A legal proceeding in which a group of people who have a claim based on similar facts bring that claim to court in the name of one person.

EDROLO: Representative proceedings are a type of civil action lodged in the Supreme Court by one plaintiff on behalf of seven or more people against the same defendant. This can occur when their claims involve similar legal matters, and come from the same (or similar sets) of circumstances.

Question 22

What is the main type of representative proceeding?

Answer 22

class action

Question 23

What conditions must be met for a representative proceeding to be commenced?

Answer 23

• 7 or more people have claims against person
• claims relate to same/similar/related circumstances
• same issues need to be decided (e.g. whether defendant owed duty of care to plaintiffs0

Question 24

Who is the lead plaintiff?

Answer 24

Person named as plaintiff in representative proceeding and who represents the group members

Question 25

Who are group members?

Answer 25

A member of a group of people who are part of a representative proceeding.

Question 26

True or False

The lead plaintiff needs the consent of group members to commence a representative proceeding.

Answer 26

False.

Doesn’t need consent, doesn’t need to who who they are or where they live.

Question 27

Identify and describe different types of representative proceedings

Answer 27

• shareholder class actions: shareholders of company make claim about being misrepresented about state of company’s affairs
• product liability class actions: consumers of G/S have all suffered same loss/damage
• natural disaster class actions: suffered loss/damage due to natural disaster

Question 28

Identify benefits of representative proceedings

Answer 28

• members can share cost
• increased access to courts as people can pursue class actions they may not be able to afford in an individual case
• more efficient way for court to deal with multiple claims, save time + resources
• litigation funder may fun class action on behalf of group members in return for percentage of any settlement/damages rewarded. increase ability of group members to pursue claim even if they lack funds themselves.
• particularly appropriate where a large number of claimants have suffered a relatively small loss

Question 29

identify some cons of representative proceedings

Answer 29

• large percentage of settlement/damages goes to litigation funders before it goes to the members themselves
• significant costs

Question 30

What is a litigation funder?

Answer 30

A third party that agrees to pay the legal costs associated with a representative proceeding in return for a percentage of the settlement/damages awarded.

Often not involved in representative proceedings.

Question 31

Identify the factors to be considered before initiating a civil claim

Answer 31

negotiation options
costs
limitation of actions
scope of liability enforcement issues

Question 32

What is negotiation?

Answer 32

Negotiation is an informal discussion between parties which aims to resolve a dispute.

Question 33

Explain negotiation options as a factor to consider when initiating a civil claim

Answer 33

• plaintiff consider whether out-of-court settlement can be reached
• try to negotiate resolution of the dispute directly with defendant through informal discussions (negotiation)
• with or without legal rep
• might organise to interact and negotiate directly with each other, might arrange facilitated negotiation (e.g. med, con, arb) or use other body (e.g. dispute settlement Victoria) to arrange negotiation/dispute resolution service

Question 34

When may negotiation not be an option?

Answer 34

• one/both parties do not want to negotiate/resolve dispute
• have been failed attempts to negotiate
• one party has been harmed by other; fear/distrust between them
• no issues to negotiate as dispute was based on one-off event
• unlike that negotiation will work e.g. due to unreasonable claim
• enforceable outcome wanted
• power imbalance between parties; not on equal footing to negotiate
• parties want their day in court

Question 35

What are the benefits of negotiating?

Answer 35

• avoid costs, time and stress of pursuing claim in court
• parties have control over outcome, instead of it being decided by third party
• not a win/lose situation, can reach agreement that is favourable to both (non-adversarial; thus more likely to accept outcome

Question 36

Explain costs as a factor to consider when initiating a civil claim

Answer 36

• legal fees for legal rep (solicitor + barrister), disbursements, adverse cost orders (possible costs paid to other party if unsuccessful)
• very expensive; may be prohibitive
• party must consider their ability to afford the costs of resolving dispute
• consider whether case is worth pursuing and if costs exceed amount plaintiff is seeking

Question 37

What are disbursements?

Answer 37

Out-of-pocket expenses or fees (other than legal fees) incurred in a legal case. Includes fees paid to witnesses, court fees and other third-party costs such as photocopying costs.

e.g. court fees (like jury costs), mediator fees, expert witness fees

Question 38

What are adverse cost orders?

Answer 38

A court order requiring a party to pay the other party’s costs

Question 39

Explain limitation of actions as a factor to consider when initiating a civil claim

Answer 39

• Restriction placed on the time within which a civil action must be commenced
• Defendant may raise limitations of actions as a defence if they believe the plaintiff has not commenced legal proceedings within the relevant time limit.
• Expiry of limitation period means plaintiff is barred from obtaining remedy
• Imposed by limitation of actions act 1958 (Vic)

Question 40

Can limitation of actions ever be extended?

Answer 40

Yes

Applications for extensions can be made if the plaintiff has suffered a disability, personal injury or defamation.

Question 41

Justify the existence of a limitation of actions

Answer 41

• defendant doesn’t have to face an action after significant time (unfair)
• so evidence is not lost as people may not remember what happened if a civil action is taken after a substantial delay.
• faster dispute resolution

Question 42

Explain the scope of liability as a factor to consider when initiating a civil claim

Answer 42

Before initiating civil claim plaintiff must determine

• possible defendants (person who directly infringed right and caused harm, or employer - if employee was acting in course of employment, in authorised way, due to principle of vicarious liability - an insurer - may run case in name of defendant as they will be making payment in end - or person involved in wrongdoing under principle of accessorial liability)
• the extent to which the defendant may be liable (defendant may argue that they are only responsible for a portion of the harm caused, may launch counterclaim and argue plaintiff’s liability, may raise defence of contributory negligence)

Question 43

Define the principle of accessorial liability

Answer 43

A way in which a person can be found responsible for the harm or loss experienced by another because they were directly/indirectly involved in causing the harm or loss (e.g. by aiding, abetting or procuring the wrongdoing)

Question 44

Explain enforcement issues as a factor to consider when initiating a civil claim

Answer 44

• The main purpose, in a majority of civil claims, is to obtain compensation from the defendant that will restore the plaintiff to the position they were in prior to the infringement occurring. Therefore, a plaintiff must consider whether a defendant is able to and will pay compensation
• e.g. defendant may not have the assets/money to pay, may be in jail (hard to enforce), may be uncontactable or overseas (cannot force them to pay), defendant may not be known to plaintiff
• may have to issue enforcement proceedings e.g. obtaining court warrant to direct court sheriff to seize defendant’s goods and sell them